James Hayden is a celebrity tattoo artist who works with famous athletes such as LeBron James and Shaquille O’Neil. Hayden brought a lawsuit against 2K Games Inc. and Take-Two Interactive Software, Inc., the makers of the NBA 2K video game series. NBA 2K contains realistic versions of current NBA players that can be controlled by the players of the video game. Hayden claimed that the game’s visual depictions of NBA players LeBron James, Danny Green, and Tristan Thompson displayed his tattoos without his authorization, thereby infringing his copyrights in those tattoos.
Both parties filed motions seeking to have the case dismissed. Hayden argued that he owned the copyrights in his tattoos and they had clearly been infringed by the game developers. 2k and Take-Two argued that Hayden’s tattoos were not sufficiently original to qualify for copyright protection. They also argued that the use of the tattoos in the game was “de minimis,” meaning their use was too small to be an infringement, because they were very small onscreen and only appeared fleetingly in the game. Additionally, they argued that the depiction of the tattoos in the game was a non-infringing “fair use,” because they were using the tattoos for a different, or transformative, purpose than for which they were originally created. Finally, they argued that Hayden had impliedly agreed to have his tattoos appear in a video game like NBA 2K, because he knew that his NBA players clients would be appearing in these games.
The court ruled that Hayden’s tattoos were sufficiently original and creative, as well as sufficiently permanent, and thus protectable by copyright. The court also ruled that Hayden had sufficiently demonstrated ownership of the copyrights.
In regard to 2k and Take-Two’s other defenses, the court was unwilling to rule on them as a matter of law. The court ruled that the issue of whether the use of the tattoos in the game was a de mimimis use was a factual issue for a jury to decide. Likewise, the court ruled that the jury would need to consider issues of fact relevant to the fair use defense, including whether the use of the tattoos in the game was transformative, the extent to which the commercial purpose of the game weighed against fair use, and the extent to which the tattoos were used or featured in the game. Finally, the court ruled that a jury would have to determine whether Hayden had intended for third parties such as 2K and Take-Two to use the tattoos at the time he created them.
The case will now be scheduled for trial, although there is a good chance that it will settle rather than proceed through trial.